Tripp and Minister for Foreign Affairs and Trade [2002] AATA 1277 (10 December 2002)

Last Updated: 12 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1277

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/12

GENERAL ADMINISTRATIVE DIVISION )

Re MARGARET ANN TRIPP

Applicant

And MINISTER FOR FOREIGN AFFAIRS AND TRADE

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 10 December 2002

Place Sydney

Decision The tribunal affirms the decision under review.

[SGD]Senior Member

CATCHWORDS

AUSTRALIAN PASSPORT - refusal of grant of passport - passport can be granted only to Australian citizen - applicant was South African citizen - whether applicant's application for South African naturalisation caused cessation of Australian citizenship - whether act of seeking South African naturalisation was an act or thing done with the sole or dominant purpose of acquiring foreign nationality

Australian Citizenship Act 1948 ss 17, 23AA

Passports Act 1938 ss 5(1) ("Australian citizen"), 7(1)

Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68

REASONS FOR DECISION

10 December 2002 Mr M J Sassella, Senior Member

THE APPLICATION

1. On 4 January 2002 Margaret Ann Tripp ("the applicant") applied to the Administrative Appeals Tribunal ("the tribunal") for review of a decision by a person authorised ("an authorised officer") by the Minister for Foreign Affairs and Trade ("the respondent") made on 22 June 2001 (T6). This decision was affirmed by another authorised officer of the respondent on 10 December 2001 (T17). The decision under review was to reject the applicant's application for renewal of her Australian passport.

THE HEARING

2. The tribunal convened a hearing in this matter in Sydney on 5 November 2002. Mr Justin Smith of counsel represented the applicant. Mr B Dubé of the Australian Government Solicitor's office in the ACT represented the respondent. There was oral evidence from the applicant by telephone from South Africa. The tribunal took into evidence the following documents:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T18) provided by the respondent.

Exhibit A1 - Applicant's statement of facts and contentions, undated.

Exhibit A2 - Statement by applicant, 30 October 2002.

Exhibit R1 - Respondent's statement of facts and contentions, 12 July 2002.

Exhibit R2 - Sample of South African application for certificate of naturalisation.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

3. Mrs Tripp was born in Manly, the Sydney suburb, on 17 October 1931 (ex A2).

4. In 1955 Mrs Tripp became resident in South Africa (ex A2). She married Michael Tripp in South Africa in 1955 and has lived with him there ever since. On 23 November 1962 Mrs Tripp was registered as a permanent resident of South Africa (ex A2).

5. Mrs Tripp has a daughter who lives in Sydney (ex A2). That daughter in turn has two children. Mrs Tripp usually visits Sydney on an annual basis and stays for one to two months. She sees these relatives on these trips to Australia.

6. On 17 March 1992 Mrs Tripp became a citizen of the Republic of South Africa (ex R1).

7. On 23 August 1996 Mrs Tripp was issued with a South African passport (ex A2). She found that a South African passport facilitated the leaving from and re-entering into South Africa.

8. In 1999 Mrs Tripp's Australian passport was reaching its expiry date. In March 1999 Mrs Tripp lodged an application for renewal of her Australian passport (ex A2). She told a departmental officer that she was a South African citizen. In that same month a person from the Australian Consulate in Capetown telephoned Mrs Tripp and told her that she could not have an Australian passport because she had a South African passport.

9. On 6 April 1999 Mrs Tripp completed and submitted to the Australian High Commission an application to resume her Australian citizenship in accordance with s 23AA of the Australian Citizenship Act 1948 ("the ACA").

10. On 26 April 2001 the applicant asked that the decision to reject her application for renewal of her passport be reviewed (T4).

11. On 22 June 2001 an authorised officer determined that Mrs Tripp's application for renewal of her Australian passport must be refused on the basis that she was not an Australian citizen (T6).

12. On 13 July 2001 the applicant sought a review of that decision in accordance with s 11A(1) of the Passports Act 1938 ("the Act") (T7).

13. On 10 December 2001 an authorised officer affirmed the decision dated 22 June 2001 (T17).

14. Several legislative provisions interact. First there is s 7(1) of the Act:

7(1) Subject to the regulations, the Minister or an officer authorised in that behalf by the Minister may issue Australian passports to Australian citizens.

15. Section 5(1) defines "Australian citizen" as:

a person who is an Australian citizen within the meaning of the Australian Citizenship Act 1948-1973.

16. Section 17 of the ACA as it was before 4 April 2002 read as follows:

Loss of citizenship on acquisition of another nationality

17 (1) A person, being an Australian citizen who has attained the age of 18 years, who does any act or thing:

(a) the sole or dominant purpose of which; and

(b) the effect of which;

is to acquire the nationality or citizenship of a foreign country, shall, upon that acquisition, cease to be an Australian citizen.

(2) Subsection (1) does not apply in relation to an act of marriage.

17. Section 17 of the ACA operated automatically. Once the terms of s 17 were met the affected person automatically lost Australian citizenship without any necessary intervention by a decision-maker.

18. The applicant explained her decision to seek South African citizenship by referring to South African political developments. In short, after decades of repressive and racist government by the National Party, that government announced in 1991 that it intended to hold a referendum in 1992 asking citizens of South Africa to answer whether they supported continuation of the reform process that the State President began on 2 February 1990 and which was aimed at a new "constitution by negotiation" (ex A2).

19. Mrs Tripp saw a positive outcome of the 1992 referendum as crucial for the future viability of South Africa (ex A2). There was great pressure on people in South Africa to register to vote. A person had to be naturalised in order to vote. Mr and Mrs Tripp decided during 1991 that they should vote in the referendum and decided to become naturalised in South Africa in order to be able to do so.

20. Mrs Tripp completed the required forms and presented them in person at the South African Department of Home Affairs. She overheard a South African government official inform a German citizen that, if he proceeded with South African nationalisation, he would lose his German citizenship. The German citizen decided to proceed no further and left. Mrs Tripp asked the same official if she would lose Australian citizenship if she proceeded with naturalisation. The official told her that she would not. She proceeded with naturalisation. She wrote in ex A2:

"I knew that the effect of making the application was that I would become a citizen of South Africa, however the reason why I made the application was because of my desire to vote in the upcoming referendum. What I did not know was that by becoming a South African citizen I would lose my Australian citizenship."

21. Mrs Tripp confirmed this material in her oral evidence. In that evidence Mrs Tripp said that she received her certificate of South African naturalisation, that she registered to vote in the referendum and did vote in the referendum.

22. Mr Smith, for Mrs Tripp argued as follows suggesting that Mrs Tripp had not lost her citizenship by means of s 17 of the ACA. Section 17(1), he said, contains two paragraphs. One relates to purpose. The other relates to effect. The sole or dominant purpose of the act here was to vote in the referendum. The effect of the act was to acquire South African citizenship.

23. Mr Smith referred to the decision in Minister for Immigration, Local Government and Ethnic Affairs v Gugerli (1992) 36 FCR 68 in which Davies J addressed the terms of s 17 of the ACA and said at page 73:

"As can be seen, the test looks at the factors which influenced the mind of the person doing the act, factors which actuated the carrying out of the step ... In his oft-cited judgment in Cox v Smail [1912] VLR 274, Cussen J analysed the assessment of such factors. His Honour referred (at 279) inter alia to 'advertence, expectation, and desire' as matters to be taken into account in ascertaining the factors influencing the decision to act and the weight to be given to them.

"That such an approach should be adopted in the interpretation of s 17 is, I think, clear from the fact that the element of purpose was deliberately introduced into s17 of the Australian Citizenship Amendment Act 1984 and from the terms of the section which distinguish between the purpose for which the act is done and the effect thereof.

...

"Although the 'purpose' in the sense in which the word is used in s 17 looks to a state of mind, it is not to be equated in all respects with motive. If a person's sole or dominant purpose in doing an act is to acquire the citizenship of another country, it matters not why the person wishes to acquire the citizenship or what use he or she will make of it."

24. As the respondent said in its statement of facts and contentions, Davies J's conclusion was that the act of the person in Gugerli (above) was to apply to Swiss authorities for recognition of her Swiss citizenship. She understood herself to already be a Swiss citizen. Her sole or dominant purpose was not to acquire Swiss nationality. Her act in making application did not, therefore, cause the cessation of her Australian citizenship.

25. Mr Smith emphasised the applicant's intention at all times not to lose her Australian citizenship.

26. The tribunal noted, in fact, that the papers presented for the applicant suggested two different versions of the dominant purpose. On 26 April 2001 the applicant's solicitor wrote to the Department of Foreign Affairs and Trade (T4/10) stating that "Mrs Tripp's 'sole or dominant purpose' of [adopting South African citizenship] was to acquire dual citizenship of Australia and South Africa" [applicant's emphasis]. Later, however, on 13 July 2001 the applicant's solicitor wrote (T7/16), "the sole or dominant purpose of her application for South African citizenship was not to acquire the nationality or citizenship of a foreign country, but rather to be eligible to vote in South Africa" [applicant's emphasis].

27. The gist of the respondent's case was expressed in paragraphs 27-30 of its statement of facts and contentions:

"...

27. The applicant contends that her sole or dominant purpose was to be able to vote rather than obtain citizenship.

28. The applicant's submissions on the dominant purpose of her actions disregard the nature of the 'act or thing' done. The evidence of the applicant is clear that her motive in applying for South African citizenship was to enable her to vote in the referendum. It is also clear that the applicant believed that she would retain Australian citizenship on acquiring South African citizenship.

29. However, it is equally clear, from the applicant's evidence, that she was aware that in applying for South African naturalisation she would become a South African citizen.

30. If the 'act' of the applicant had been to vote in the referendum, whereby the effect of which was to also acquire South African citizenship, the applicant would be able to distinguish the statement in Gugerli regarding motive. However, because the initial act was solely application to acquire South African citizenship, the applicant's desire to vote in the referendum, can only be construed as her motive for acquiring citizenship rather than the dominant purpose of the 'act' she undertook. The 'purpose' of the applicant's naturalisation application was solely to become a South African citizen.

..."

28. Effectively the respondent's argument here was that the act done, in itself, says much about the sole or dominant purpose. The very act was the acquisition of South African citizenship. The applicant had a purpose of achieving this end when she applied for naturalisation. She intended to acquire a change of citizenship status. This was what was described at the hearing as a "hurdle act". The "ultimate act" was to vote.

29. Mr Dubé contrasted the situation with one where a person voted in a referendum in a foreign country and in so doing automatically acquired foreign citizenship. Section 17 of the ACA would not cause the cessation of Australian citizenship in that case.

30. Mr Smith countered these submissions by arguing that, while some focus on the "act or thing" might be justified, that inquiry cannot occur without consideration of the purpose of the doing of the act or thing. That consideration must, in turn, take account of the factors surrounding it. He said that the surrounding circumstances in Mrs Tripp's case were so overwhelming and so central that they drove the dominant purpose.

31. The tribunal has concluded that Mr Dubé had the better of the arguments in this application, based on the Federal Court authority in Gugerli (above). The tribunal understands Davies J in Gugerli (above) to have taken the view that a person who does an act or thing, such as applying for foreign nationality, citizenship or naturalisation, with a view to attaining foreign nationality, albeit in order to use that as a platform for achieving a later aim, has done an act or thing for the sole or dominant purpose of acquiring the nationality or citizenship of a foreign country. That, in the tribunal's view, is what occurred here. Mrs Tripp sought South African naturalisation in order to become a South African citizen, albeit so that she could later vote in the referendum. She did an act or thing that had the purpose of changing her South African citizenship status. The case is distinguishable from Gugerli (above) where the individual did an act for the purpose of confirming her status as a citizen of Switzerland. In that case the purpose was not to change foreign citizenship status.

CONCLUSION

32. While the tribunal respects Mrs Tripp's reasons for seeking South African naturalisation, it has found, in accordance with Federal Court authority, that the purpose at law of her seeking South African naturalisation was to acquire the nationality or citizenship of a foreign country. This had the effect of annulling her Australian citizenship. As Mrs Tripp had lost her Australian citizenship, the respondent acted properly in rejecting her application for a passport.

DECISION

33. The tribunal affirms the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed: .....................................................................................

Associate

Date of hearing 5 November 2002

Date of decision 10 December 2002

Counsel for the applicant Mr Justin Smith

Solicitor for the applicant Aitken McLachlan & Thorpe, Solicitors

Counsel for the respondent Mr Ben Dubé

Solicitor for the respondent Australian Government Solicitor